Conqueences of Ineffective Assistance of Appellate Lawyer
In Orme v. State, 896 So. 2d 725 (Fla. 2005), the Court recently explained the standard for analyzing claims of ineffective assistance of appellate counsel:
Claims of ineffective assistance of appellate counsel are properly raised in a petition for writ of habeas corpus addressed to the appellate court that heard the direct appeal. See Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000).
Such claims must be analyzed using the same two-pronged test promulgated in Strickland.
That is, we must determine whether counsel's performance was deficient, and, if so, we must determine if the deficient performance prejudiced the defendant.
In Rutherford the Court said:
If a legal issue "would in all probability have been found to be without merit" had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective. Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994); see, e.g., Kokal v. Dugger, 718 So. 2d 138, 142 (Fla. 1998); Groover, 656 So. 2d at 425.
This is generally true as to issues that would have been found to be procedurally barred had they been raised on direct appeal. See, e.g., Groover, 656 So. 2d at 425; Medina v. Dugger, 586 So. 2d 317, 318 (Fla. 1991).
This principle is applicable to this case unless the error is deemed to be fundamental error.
Fundamental error is an error that "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996) (quoting State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)).